Judges With Grudges

When the Massachusets Supreme Judicial Court overturned a state assembly law in order to make gay marriages legal in that commonwealth, the judges looked deeply into the state’s constitutional history, but not deeply enough.

“Why, for example, should people like those who wrote the Goodridge decision care about this history?” attorney Gene Schaerr asked rhetorically. “Because it shows that, when a judge goes beyond simply applying a law or constitution according to its original meaning, and instead pours his own new meaning into it, he or she is engaged in an immoral act.”

The state court ruled that the legislature violated Article 10 of the Massachusets Declaration of Rights. “Ironically, the opinion never bothered to explain how that provision could possibly invalidate the heterosexual limitation in the State’s marriage law,” Schaerr points out. “Even more ironically, that provision was written by John Adams for a Puritan population that could never in a million years have predicted that this provision would one day be used to sanction and even mandate an arrangement so far removed from their moral views.”

Schaerr, a Yale Law School graduate who has clerked for two Supreme Court Justices, provided some much-needed food for thought as Conservative University’s dinner speaker on Friday, July 16th. “Enlightened” justices and legal scholars could learn a few things from Schaerr’s homage to hard-nosed realism and practicality.

Schaerr began with a history lesson, putting the founders’ views and words into a wider context. “[The Founding Fathers] believed there was such a thing as moral, or just, government, and an unjust or immoral government,” and that, “as John Adams put it just a few days before the Declaration of Independence was signed. . . ‘the only moral foundation of government is the consent of the people.’”

“Those who laid the intellectual foundations of our Republic anticipated this very issue with judges,” Schaerr continued, “they viewed any government action that was not based on the consent of the people as a usurpation of the people’s right to govern themselves.” He cited Washington’s farewell address: “‘. . . but let there be no change by usurpation’—there’s that morally charged word again—‘for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.’”

Quoting the philosopher John Locke, he noted that “‘nor can any edict of anybody else’—including judges—‘have the force and obligation of a law, which has not its sanction from that legislative which the public has chosen and appointed. For without this the law could not have that which is absolutely necessary to its being a law: the consent of the society.’

“In Federalist 81, for example, Hamilton squarely rejected the idea that the courts would be allowed to construe the laws according to the spirit of the Constitution rather than its letter.” Schaerr went on: “And he said that doing that, trying to enforce the spirit of the Constitution without hewing to the letter, would be dishonest—a ‘pretence,’ he put it—‘for them to substitute their own pleasure to the Constitutional intentions of the legislature.’”

Schaerr termed this the “non-originalist” interpretation of the Constitution, an example being the Supreme Court invalidating a law instituting death by lethal injection “because they think any execution is ‘cruel and unusual punishment’ in violation of the 8th Amendment.”

However, “execution was common when the 8th Amendment was adopted, so it would not have been considered ‘cruel and unusual’ when the people consented to that amendment. The people, therefore, have never ‘consented’ to a restriction that prohibits their representatives from imposing the death penalty. For judges to impose such a restriction is a clear ‘usurpation’ of the people’s authority . . . a ‘usurpation’ of the people’s right to self-government.”

How do we prevent such judicial abuses? Start with the legislators, Schaerr suggests. “Don’t expect to hear candidates for office say, ‘Oh yes, I want judges who will twist the law beyond recognition for their own political ends.’ But when you hear candidates say things like, ‘I will appoint judges who respect the right to X, or the right to Y, or the right to Z,’ you know you’re dealing with a candidate who really wants judges who will be willing to do just that when they think it will advance X, Y or Z.”

“Second, we can be on the lookout for political philosophies that seek to justify the exercise of political power without the consent of the governed. Much of the political philosophy written since the founding of our nation is designed to do just that. Many utilitarians, for example, say it’s okay for a judge or bureaucrat to do something without the people’s consent as long as it will increase the overall ‘welfare’ of society.”

Finally, “practical arguments” have a difficult time countering “moral” ones. “You’ve probably already found that it’s very difficult to oppose a moral argument with a practical one . . . there’s almost always some kind of moral argument to support a ‘usurpation’ of the people’s right to self-government. So we have to explain, with patience and courage, why the usurpation is itself immoral.” Don’t shy away from moral arguments, Schaerr advised: “We can oppose these judges, candidates, and philosophies on moral grounds, rather than relying only on practical arguments.”

A rising sophomore at Kenyon College, Peter Seabrook is an intern at Accuracy in Academia.

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